Tuesday, August 31, 2010

CALL FOR PAPERSThe Third Graduate Student Conference on the History of American Capitalism:“Capitalism in Action”

Harvard University | Cambridge, MA | March 4th-6th, 2011Sponsored by the David Howe Fund for Business and Economic History at Harvard University.

Keynote Speaker: Jackson Lears

Discussions of American capitalism often uncritically rely on loaded but abstract terms, from “markets” to “capital.” This conference aims to bring together emerging scholars who are interested in interrogating the nitty-gritty details of how capitalist systems have been imagined, constructed, maintained, altered, and challenged by an array of different historical actors in the United States and across the globe. What does “the economy” look like once we shift our focus from intangible market models towards the concrete workings of capitalist society and culture? In this conference, we hope to expand our understanding of American history by analyzing many different moments of “capitalism in action.”

We welcome papers by fellow graduate students from many different fields, such as cultural, social or business histories of capitalism. We encourage papers on a range of diverse topics. Possible paper subjects could include anything from mortgage-backed derivatives, land speculation and the geography of garbage to corporate personhood, consumer branding and the political economy of baseball. We welcome the submission of panels as well.

Interested graduate students should submit a C.V. and a 750-word abstract of their paper (description, significance, sources, current status) to:

The submission deadline is Nov 1st, 2010. Those selected to present will be notified by Nov 19th and receive a stipend towards travel costs.For additional information, please see: www.fas.harvard.edu/polecon or email histcap@fas.harvard.edu. For the websites of previous conferences, please see www.fas.harvard.edu/~polecon/conference/ and www.fas.harvard.edu/~histcap/.

Professor Robert Cottrol, George Washington University Law School, announces two lectures at GW by the Argentine Legal Historian Juan Carlos Frontera of La Universidad del Salvador in Buenos Aires:

Monday, October 4, 2010. Historical Aspects of the Law of the Indies with special reference to the Vice Royalty of the Rio de la Plata

Tuesday, October 5, 2010. Legal History of the Formation of the Argentine State, Federalism and Separation of Powers in the Argentine Republic

The lectures will be held at the Faculty Conference Center, George Washington University Law School from 6:00 to 7:30 PM. They will be in Spanish with translations. Those interested in attending contact Professor Cottrol at (202) 994-5023 or email at bcottrol@law.gwu.edu

Monday, August 30, 2010

The New Habeas Revisionism has just been posted by Stephen I. Vladeck, American University - Washington College of Law. It is forthcoming in the Harvard Law Review (2011). Here’s the abstract:

There is relatively little in the Constitution's drafting history or ratification debates to illuminate the intended meaning of the Suspension Clause, and what it specifically protects by preserving "the Privilege of the writ of Habeas Corpus" except in cases where habeas is properly suspended. Most jurists and commentators at least seem to agree on the constitutional floor - that, as Justice Stevens put it in 2001, "at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.'" But even that limited point of consensus only begs a separate question: what was the scope of the writ in English law in 1789, the practice from which we presume the Founders meant to borrow?

In Habeas Corpus: From England to Empire, Professor Paul Halliday provides a new series of answers to that question, using archival research to survey the scope of English habeas practice during the sixteenth, seventeenth, and eighteenth centuries. Rather than rely upon the published reports of English judicial decisions or the works of contemporaneous treatise writers, Halliday's work focuses on the writs themselves, extrapolating a series of conclusions based upon comprehensive archival research. To that end, Halliday's revisionist methodology reveals that many classical accounts of the scope of the writ in pre-revolutionary England (including Blackstone's) are in fact "whig" histories, superimposing modern and anachronistic understandings of rights and remedies onto a practice that was, in reality, far different. As Halliday explains, the dominant feature of pre-revolutionary habeas was the flexibility and dexterity of the justices in applying the common-law writ; and the true threat to such judicial power was Parliament - not just when it suspended habeas, but, ironically, when it codified the writ, as well. Ultimately, habeas corpus in seventeenth- and eighteenth-century England was about principles, not rules - about power, not rights. No case expressly refuted the rule against controverting the return, and yet the justices consistently flouted it. No case expressly held that the writ could reach anyone who answered to the sovereign, and yet the justices consistently sent it. No case expressly established the flexibility of the remedy that came to characterize habeas practice into the latter half of the eighteenth century, and yet the justices routinely demonstrated it. In the end, Halliday's book does more than just refute time-honored conceptions of the scope of habeas in England at the Founding; it refutes the way in which we have arrived at those conceptions, proving not just that we have consistently taken the wrong lessons from the wrong sources, but that we have been (and perhaps still are) asking the wrong questions, looking for individual cases to prove what the rules (that must have existed) must have been.

Although this review essay uses the Guantanamo detainee cases to both summarize Halliday's conclusions and explain how they should reorient our understanding of the ambit of the writ in contemporary litigation, it suggests that the true significance of Halliday's history runs deeper. As useful as these revisionist conclusions should be in identifying the specific scope of the writ "as it existed in 1789," what they really confirm is the protean dynamism of pre-revolutionary habeas in England. As the essay concludes, tying the Suspension Clause to what was true at the Founding only makes sense if one accepts that the result is a constitutional floor marked by fluid principles, not rigid practices. And although that proposition reveals serious and systematic flaws in how contemporary courts and commentators have approached questions as to the scope and sweep of habeas at the Founding, it remains for future generations, and not historians, to decide if the Constitution does - or should - protect anything more.

Stephen posted extensively on habeas history while a guest at the Legal History Blog over the summer. His posts are here.

December 10, Randy Browne (UNC-CH), "Punishment, Reform, and the Amelioration of Slavery in the British Caribbean," co-sponsored with the Triangle Legal History Seminar

March 25, Rebecca Scott (University of Michigan), "'Mistress of Her Own Person': Contesting Enslavement through Law in the Era of the Haitian Revolution," co-sponsored with the Triangle Legal History Seminar

Apr. 29, Holly Brewer (NCSU), "The Seventeenth-Century Contest over a Common Law of Slavery," co-sponsored with the Triangle Legal History Seminar

The seminar’s organizers explain:

We meet on Friday afternoons from 4-6 p.m. at the National Humanities Center in Research Triangle Park, North Carolina. Our group includes faculty and graduate students from area universities, including Duke University, N.C. State, UNC Greensboro, and UNC Chapel Hill. We circulate the paper in advance, then discuss it during the seminar.

According to various sources, 27 million people worldwide are enslaved, hundreds of thousands are trafficked across international borders, and each year 15,000 to 17,000 people are trafficked into the United States. In response, anti-trafficking activists, academics, and others have sought to use the trans-Atlantic slave trade and slavery to understand and combat this modern form of exploitation. The form of use varies: Either "the old slavery" is compared to "the new slavery" with respect to, for example, the egregiousness of abusive treatment of the enslaved, the level of interconnection of the phenomenon with the global economy, or the race or ethnicity of the victims in order to distinguish the new slavery from the old. Often, the implicit hypothesis is that modern slavery is more widespread and awful, and involves more victims and, by extension, more human degradation than did the trans-Atlantic slave trade. Still others invoke the trans-Atlantic slave trade and slavery to assume a mantle of self-righteousness, and distance themselves, their political and economic system, their state and its efforts, from the repugnant phenomenon.

I claim that those who have used the analogy have failed to explore it other than superficially, or to adequately map out the similarities and differences between the two phenomena. As a consequence, the ability to effectively combat the modern traffic in human beings has been compromised both internationally and domestically. The analogy is underutilized as currently deployed because it does not illuminate the essential similarities or differences in the phenomena. Instead, the trans-Atlantic slave trade is too often invoked in appeals to emotions to serve particular ends of the user.

The analogy to the trans-Atlantic slave trade can be relevant if explored more deeply - there are similarities not merely in individual plights but in the deeper structures of the world economic system and the factors that cause and foster the rise in the phenomena.

In the fourth chapter of Patriots and Cosmopolitans: Hidden Histories of American Law, legal historian John Fabian Witt tells the story of a collaboration between storied scholar Roscoe Pound and trial virtuoso Melvin M. Belli, which he calls "among the most startling and yet unremarked-upon relationships in the annals of American law." Witt argues that it both shaped and energized the efforts of personal-injury lawyers to oppose proposals that would shift to the administrative branch of government responsibility for compensating auto-accident victims. Entitled "The King and the Dean," in reference to the media's coronation of Belli as the "King of Torts", and Pound's lengthy term (1916-1936) at the helm of the Harvard Law School, the chapter advances the claim that the two men came together synergistically in the early 1950s and mobilized a campaign by personal-injury lawyers to resist the enactment of automobile no-fault plans and other proposals that would have replaced common-law tort suits with alternative compensation mechanisms. This Article will first take issue with Witt's story of the Pound-Belli relationship and then offer a different version of the interaction between the Dean and the plaintiffs' trial bar.

Thursday, August 26, 2010

The U.S. Supreme Court and International Law: Continuity and Change, eds., David L. Sloss, Santa Clara University School of Law, Michael D. Ramsey, University of San Diego School of Law, and William S. Dodge, University of California Hastings College of the Law, is forthcoming from Cambridge University Press. Contributors include John Witt, Edward Purcell, Martin Flaherty, Mark Tushnet and many others. The table of contents is here.

Sloss, Ramsy and Dodge have posted the intro and conclusion on SSRN. Here’s the abstract:

This document contains the Introduction and Conclusion for a forthcoming book on the history of international law in the U.S. Supreme Court. The book is an edited volume, with twenty contributing authors, which will be published by Cambridge University Press in 2011. The volume focuses on the themes of continuity and change in the Court's international law decisions from the 1790s to the present. It is the first book to provide a comprehensive account of the evolution of international law jurisprudence over two centuries of Supreme Court history. The Introduction provides a brief overview of the project. The Conclusion summarizes the most important findings that emerge from the study.

Wednesday, August 25, 2010

The Role of the Constitution in the Civil War is the title of the inaugural Omar N. Bradley Memorial Lecture delivered earlier this month at the Army War College by Mark E. Neeley, Jr. “I don’t think it would be an overstatement to say that the constitution was a war hero during the Civil War,” Professor Neely said. “I tend to believe that it set the conditions for the north winning the war.”

As I prepare to sign off, I want to thank Mary and Dan for inviting me to be a guest blogger in August. This was my first foray into blogging, and it was great fun. I remain an avid reader of the Legal History Blog. I'll look forward to meeting other readers of the Blog at the upcoming annual conference of the American Society for Legal History in Philadelphia.

Evelyn Brooks Higginbotham, the Victor S. Thomas Professor of History and of African and African American Studies and Chair of African and African American Studies at Harvard University, is the inaugural holder of the John Hope Franklin Chair in American Legal History at Duke Law School during the 2010-11 academic year.

Higginbotham holds the chair on a visiting basis. While at Duke, she is teaching a course on Race, Law, and Civil Rights History and a seminar exploring, through a study of biographies and autobiographies, how personal life experiences might influence the actions and works of lawyers and judges.

“We are delighted that Professor Higginbotham has agreed to serve as the inaugural holder of the John Hope Franklin Chair,” said Duke Law Dean David Levi. “It is only fitting and proper that Professor Higginbotham should be the first holder of this chair. Not only is she a distinguished historian of civil rights, but she is also Dr. Franklin’s close friend and co-author of the new edition of his important work, From Slavery to Freedom: A History of African Americans. Our students and faculty are eager to welcome her to Duke for the coming year.”

Raping Like a State has just been posted by Teemu Ruskola, Emory University School of Law. It is forthcoming in the UCLA Law Review. Here's the abstract:

It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violence is continually represented as sexual violence. This Article applies the insights of queer theory to examine this rhetoric of sexual violation. More specifically, it analyzes the injury of colonialism as a kind of homoerotic violation of non-Western states' (would-be) sovereignty. The Article does so by taking seriously the legal fiction of the state as an "international legal person." Historically, colonial violence is routinely described as rape. What does it mean to liken a state to a person, and its conduct to rape? How does a state rape? Whom does it rape, and under what conditions? This Article examines international legal rhetoric to illustrate the normative masculinity that is attributed to sovereign states, and it argues that non-Western states' variously deviant masculinities, together with their civilizational and racial attributes, rendered them rapable. The Article uses China as a case study. As a historically recognized yet "effete" civilization, throughout the nineteenth century China occupied an unstable intermediate position between the colonizable and the fully sovereign, savage and civilized, Africa and Europe. International law provided a vocabulary for transforming China's alleged economic and political isolation into a violation of a "right of intercourse," which in turn justified the establishment of a non-territorial form of imperialism that fell short of colonialism proper: the practice of extraterritorial jurisdiction. In the end, the queer rhetoric of international law did not simply reflect China's inherent weakness; it helped make it internationally weak. In sum, the Article illustrates some of the general processes by which international law excludes and includes subjects. Sexual, gendered, and racial metaphors continue to structure uneven global relations even today. Queer enemies of mankind are not history.

Through a survey of nineteen leading cases on Islamic dower and divorce between 1855 and 1924, this article explores the ways judges acted as semi-autonomous agents by undermining the colonial legislation and personal law treatises they were expected to apply. Contrary to the view that colonial judges consistently reinforced the patriarchal authority of husbands in direct and immediate ways, it suggests that some colonial judges were working in the service of their own chivalric imperialist agenda: the defense of Muslim wives. The article focuses on two particular moves. First, colonial judges encouraged the use of inflated dower, a device intended to make the husband's power of triple tal-q too expensive to use. Colonial legislators invalidated inflated dower in various parts of India, but judges confirmed the validity of inflated dower sums whenever possible. Second, judges expanded the use of delegated divorce, a device that helped Muslim wives counter their husbands' right to polygamy and unilateral divorce. In doing so, judges undermined the restricted approach to delegation taken by colonial treatises on Anglo-Islamic law.

This dissertation explores the ways in which the ethnic identity of South Asia's Parsis was forged through litigation in the British colonial courts. The Parsis were Zoroastrians who fled to India after the seventh-century conquest of Persia by Arab Muslims. Under British rule, they became an elite of intermediary traders and professionals. Around 1900, a series of lawsuits erupted on the admission of ethnic outsiders into the Parsi community through intermarriage, conversion, and adoption. This dissertation is a study of the most extensive of these cases, the Privy Council appeal of Saklat v Bella (1914-25). The case erupted when an Indian orphan named Bella was adopted by Parsis in Rangoon, initiated into the Zoroastrian religion, and taken into the Rangoon fire temple, a space arguably desecrated by the presence of ethnic outsiders. Through an examination of case papers and judges' notebooks from the Judicial Committee of the Privy Council (London) and the Bombay High Court (Mumbai), the dissertation explores competing visions of Parsi identity that were promoted by reformist and orthodox Parsis as litigants, witnesses, lawyers, judges, and journalists. Bella's case highlights two sorts of displacement. First, a patrilineal definition of Parsi identity was overtaken in this period by a more exclusive, eugenics-based racial model. As anxieties over communal extinction peaked with the advent of the census, orthodox Parsis clung to the notion of Persian racial purity, excluding Indian, Burmese, and European outsiders with renewed tenacity. Second, the colonial legal system's reconfiguration of Parsi religious institutions as trusts unravelled the authority of Zoroastrian priests as arbiters of religious doctrine. On a larger scale, Saklat v Bella illustrates how a "centripetal jurisprudence" contributed to the creation of a unitary "legal India" and an empire of common law. It is also a story about legal pluralism and the rise of a non-European legal profession in the colonial context. Parsis rose to prominence as lawyers and judges in this period, and used their legal influence to carve out a space for Zoroastrian legal identity.

[Her] research explores intersections between law, religion, and politics in Pakistan through a focus on the historically shifting relationship between the Pakistani state, religious nationalism, and legal representations of the heterodox religious minority, the Ahmadiyya community. In particular, she considers the meanings that notions of statehood, religious rights, and Muslim citizenship have acquired through processes of nation-state formation.

Her book manuscript is provisionally titled Politics of Exclusion: Muslim Nationalism, State Formation and Legal Representations of the Ahmadiyya Community in Pakistan.

The second fellow is Camille Walsh.

[She] specializes in 20th century U.S. legal history, the development of the right to education, and the concept of “taxpayer citizenship.” Her research and teaching interests include 19th and 20th century U.S. legal history, tax law and policy, education law and history, African American history and the long civil rights movement, women’s history, and race, gender, and poverty.

Walsh received her BA from New York University, her JD from Harvard Law School, and her MA and PhD in US history from the University of Oregon. She has received fellowships from the Spencer Foundation, the Woodrow Wilson Fellowship Foundation, the University Club of Portland, and the Wayne Morse Center for Law and Politics.

She will work on her manuscript, Guardians of Inequality: Class, Race and the Struggle over Education in U.S. Courts, 1899-1974, which examines the intersection of class and race segregation in litigation over public schools in the 20th century and the failure of courts to respond to demands for educational equality rooted in both economic and racial discrimination.

Drawing from social movement theory, this article shows that both the constitutional challenge to gun bans in Illinois and the constitutional challenge to California's same-sex marriage ban have had to deal with issues of frame alignment similar to those confronted by the civil rights movement in the 1960s. Yet, it is the Second Amendment litigation, ironically, that has most closely followed the movement's attention to aligning legal claims with cultural trends. Out of this analysis emerges a larger claim that the analytics of frame alignment, and social movement theory generally, deserves more attention by constitutional scholars, both as a uniform analytic for comparing divergent reform agendas, and for better understanding the central role of cultural frames in determining the parameters of constitutional rights.

A succession of crises has marked the last decade of European integration, leading to disorientation among integration scholars. Older frameworks for understanding have been challenged, while the outlines of new ones are only now beginning to emerge. This book looks to history to provide a more durable explanation of the nature and legitimacy of European governance going forward. Through detailed examination of certain fundamental but often overlooked elements in EU history, Peter Lindseth describes the convergence of European integration around the 'postwar constitutional settlement of administrative governance.' 'Administrative' here does not mean 'non-political' or 'technical'-it means that supranational regulatory authority should properly be seen as 'delegated' from national constitutional bodies. As such, supranational policymaking has relied to a significant degree on forms of oversight by national executives, legislatures, and judiciaries, following models of 'mediated legitimation' first developed in the administrative state and then translated into the European context. These national mechanisms developed specifically to overcome the core disconnect in European integration-between exercises of otherwise autonomous supranational regulatory 'power,' on the one hand, and the persistence of the nation-state as the primary source of democratic and constitutional 'legitimacy' in the European system, on the other. It has been through recourse to the legitimating structures and normative principles of the postwar constitutional settlement, this study shows, that European public law has sought to reconcile 'Europe' and the nation-state for more than fifty years.

In the high middle ages, land in medieval Europe was the most important source of political power, social status, and material wealth. Even in the earlier centuries. control over land was a [rime goal for the ambitious, and much conflict was fought out as disputes over its control and enjoyment. So land title and the vocabulary and discourse with which it was contested occupies a rather central position in medieval culture as a whole. It is, therefore, fitting that as medieval European legal systems matured, they put a great deal of effort into developing their land law and minutely elaborating concepts like “fief,” “seisin,” “tenure,” “dominium,” and “proprietas.” The result was a transformation of the relationship between people at all levels and the land on which all depended in the last resort for their sustenance. To understand medieval society, economy, and culture, we must understand the institutions relating to land and those who directly cultivated it with the strength of their bodies, or claimed it as theirs and sought to defend their right and enjoy its fruits — lordship, ownership, and the diverse rights and interests behind our modern Western concept of property.

The technical vocabulary of land law was derived from the everyday vernacular of speech, especially Old French. Latin “feodum” and its French equivalent “fief” were familiar terms to all who witnessed charter grants or were stirred by chansons de geste or romance. In return they re-entered secular culture as metaphor and image. Men whose ancestors had “sat” upon land were in time deemed to “hold” their fees or fiefs by this or that tenure. When Chaucer said of his Man of Law that “al was fee symple to hym in effect,” his lay readers and listeners took his point.

This panel, therefore, will explore the intersection among law, economics, and culture in the particular context of medieval European land law.

Please send abstracts (as instructed by the Kalamazoo authorities) in the first instance to Paul Hyams, History Dept., Cornell, Ithaca NY 14853–4601 or by e-mail to prh3 at cornell dot edu.

Volokh writes that he and Professor Hyams "need abstracts no later than September 15, ideally somewhat earlier."

Tomorrow is the first day of class at the University of Iowa law school. Among my courses will be first-year Property, which I begin with Pierson v. Post. Each time I teach the course, I'm reminded of how much legal history the students would benefit from knowing, but don't know yet. And when I introduce them to some legal history -- the forms of action, or Blackstone's Commentaries, or the distinction between law and equity -- I'm reminded that what I'm giving them is only a piece or two, at a time, of a much larger jigsaw puzzle. I think of Maitland's famous opening line: "Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web."

By the end of the Property course, students have learned a bit of Anglo-American legal history -- history secreted in the interstices of law, to paraphrase Maine. But I wish it were more. I wish that they would all take enough coursework to become familiar with the rich history of the common law. Can we really be graduating lawyers for whom Blackstone, Coke, and Mansfield -- let alone Henry II -- are largely unknown?

And what about the rich heritage of legal history outside the common law? The history of Roman and civil law, and canon law, are important components of the development of the law(s) of Europe. And we must not forget to include the history of law in other regions of our increasingly inter-connected globe.

All of this would be part of the schooling of a well-educated lawyer, were I the czar of the curriculum. But as it is, I manage to secrete history into the interstices of law. And with luck, some of the students will be inspired to learn more....

This article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay over domestic assaults. However, legal authorities struggled with the dilemma of how to deter batterers whose victims were reluctant to prosecute. To be sure, the state's response was not as aggressive as under modern mandatory arrest laws and no-drop prosecution policies. Yet the "why didn't she leave?" question actually may have seemed easier to answer in the late 1800s and early 1900s than it did later in the twentieth century. Due to the failure of the state to prevent recidivist domestic violence, juries and even judges often deemed the actions of women who killed their abusive husbands wholly or partially justified. In contrast, husbands who killed their wives tended to be convicted of murder because their crimes violated the ideal of the "respectable family man" that was vital to the efforts of both the American West and Australia to project a civilized image.

This article makes three contributions. First, it presents a complex and surprising picture of gender relations in the American West and Australia by showing that men punished other men for physically attacking their wives and that there was greater public concern about violent marriages than scholars have realized. Second, it documents the criminal prosecution of wife-beaters and wife-killers on two continents during a seventy-year period, which indicates that this was not just an isolated peak of intervention in a long history of apathy toward domestic violence. Third, Professor Ramsey shows that scholarly emphasis on women's insanity claims has obscured the extent to which female defendants successfully raised self-defense arguments to obtain acquittal or mitigation in intimate-partner murder cases. The justification of abused women's use of deadly force acknowledged the desperate circumstances they faced in societies that condemned domestic violence, but had neither succeeded in deterring it, nor provided victims with adequate escape routes.

The history that Hyde invokes goes back to the Middle Ages, when villagers enjoyed collective rights to common lands, but for the most part it is situated in the era of the founding fathers. Hyde invokes the founders in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain - in science, the arts, literature, and the entire world of knowledge - in order to exploit monopolies.

Saturday, August 21, 2010

Under the Fourteenth Amendment, children born in the United States are citizens, even if their parents are not. Inspired by Arizona's new (and partially suspended) law regulating unauthorized immigration, Senators Mitch McConnell, John Kyl, John McCain, Lindsey Graham, Representative John Boehner, and other Republican leaders have proposed considering amending the Constitution to deny citizenship to children born in the United States but whose parents are undocumented.

As law professors we oppose the proposed change, not only for historical and legal reasons, but also on deeply personal grounds. We are the face of the children of illegal aliens, people who are not just abstractions but parts of the human mosaic of the American nation. As it happens, all three of us are the grandchildren of individuals who entered the United States without authorization. From our perspective, the proposal is unwise.

They go on to tell the stories of the way their grandparents came to the United States. Continue reading here.

I can add to this history. My fraternal grandmother came to the United States from Poland, and later worked for many years in the papers mills in western Massachusetts. When she arrived at Ellis Island, she was a teenager traveling alone. She pretended to be a member of a family arriving legally, and gave a false name. If she had not done that, she most certainly would have been excluded from the country as likely to be unable to support herself. She and my grandfather had four children, all of whom served in the U.S. military. Her grandchildren and great grandchildren include school teachers, a nurse, a veterinarian, a former chef, and even a hydro-geologist. The stories of our families show that the history of "illegal aliens" is an essential part of the story of America.

This essay reexamines realist jurisprudence through a review of two biographies of leading realists: Dalia Tsuk Mitchell’s Architect of Justice: Felix Cohen and the Founding of American Legal Pluralism (2007), and Spencer Waller’s Thurman Arnold: A Biography (2005). The essay argues that when biographies of legal realists are considered alongside their academic writing, a more robust jurisprudence emerges. Realist lives crystallize the intuition that the major innovation of legal realism was not, as generally assumed, its attitude toward judges and adjudication. Instead, realist jurisprudence is an institutionalist view of law with a focus on groups rather than individuals. Realist jurisprudence understands courts, legislatures, administrative agencies, and nongovernmental groups as important loci of law, lawmaking, and legal reasoning.

New on the Gilder Lehrman website is Jefferson and the Constitution, a downloadable podcast by Peter Onuf, the Thomas Jefferson Foundation Professor of History at the University of Virginia. Here he takes up "Jefferson's opinions about Federal government."

The dominant scholarly consensus holds that the Fair Housing Act of 1968 was "toothless" and devoid of enforcement; in the words of the pre-eminent scholars of US housing segregation, it was "purposefully designed so that it would not and could not work." This Article demonstrates that this consensus is wrong, that in fact the Fair Housing Act contained ample enforcement mechanisms. Moreover, it reveals the "secret history" of the Fair Housing Act, namely, that it passed in 1968 not through Congressional perfidy but rather through a classic political deal between President Lyndon Johnson and Senate Republican Leader Everett Dirksen: Dirksen would support a compromise on fair housing in exchange for Johnson ensuring that Dirksen would face a weak opponent in his re-election bid. These conclusions force us to reconsider fundamentally the history of housing discrimination and segregation in the United States since the passage of the Act, and re-think how housing integration might be achieved in the future.

The program is now available, here, for this year's San Francisco Rights conference, A Question of Rights in U.S. Society, which will be held at San Francisco State University, September 16-17, 2010. Highlights include Anders Walker, "Shotguns, Weddings, and Lunch Counters: Why Cultural Frames Matter to Constitutional Rights," a keynote by Lynn Hunt, "Tortured Bodies, Novel Readers, and the Origins of Human Rights" (the title of which reminds me of a classic essay by Elizabeth Clark), and a roundtable on Fehrenbacher's Dred Scott Case.

Human rights offer a vision of international justice that today's idealistic millions hold dear. Yet the very concept on which the movement is based became familiar only a few decades ago when it profoundly reshaped our hopes for an improved humanity. In this pioneering book, Samuel Moyn elevates that extraordinary transformation to center stage and asks what it reveals about the ideal's troubled present and uncertain future.

For some, human rights stretch back to the dawn of Western civilization, the age of the American and French Revolutions, or the post-World War II moment when the Universal Declaration of Human Rights was framed. Revisiting these episodes in a dramatic tour of humanity's moral history, The Last Utopia shows that it was in the decade after 1968 that human rights began to make sense to broad communities of people as the proper cause of justice. Across eastern and western Europe, as well as throughout the United States and Latin America, human rights crystallized in a few short years as social activism and political rhetoric moved it from the hallways of the United Nations to the global forefront.

It was on the ruins of earlier political utopias, Moyn argues, that human rights achieved contemporary prominence. The morality of individual rights substituted for the soiled political dreams of revolutionary communism and nationalism as international law became an alternative to popular struggle and bloody violence. But as the ideal of human rights enters into rival political agendas, it requires more vigilance and scrutiny than when it became the watchword of our hopes.

And the advance reviews:

"A most welcome book, The Last Utopia is a clear-eyed account of the origins of `human rights': the best we have."-Tony Judt, author of Postwar: A History of Europe Since 1945

"Human rights have always been with us - or so their most zealous supporters would have us believe. With surgical precision and forensic tenacity, Moyn reveals how recent and how contingent was the birth of human rights and how fraught has been its passage from 1970s antipolitics to present-day political program."-David Armitage, author of The Declaration of Independence: A Global History

"The Last Utopia is the most important work on the history of human rights yet to have been written. Moyn's search for origins reads like a great detective story as he carefully sifts the evidence of where and when human rights displaced alternative political ideals. "-Paul Kahn, Yale University

"With unparalleled clarity and originality, Moyn's hard-hitting, radically revisionist, and persuasive history of human rights provides a bracing historical reconstruction with which scholars, activists, lawyers and anyone interested in the fate of the human rights movement today will have to grapple."-Mark Mazower, author of No Enchanted Palace: The End of Imperialism and the Ideological Origins of the United Nations

"In this profound, important, and utterly original book, Moyn demonstrates how human rights constituted a new moral horizon and language of politics as it emerged in the last generation, a novel and fragile achievement on the wreckage of earlier dreams. A must read. "-Nikhil Pal Singh, author of Black is a Country

"Anyone who truly cares about human rights should confront this bracing account. "-Jan-Werner Müller, Princeton University

Tuesday, August 17, 2010

Constitution Day is exactly one month away, and commemorates the day (September 17, 1787) the U.S. Constitution was signed. To help educators prepare for this day next month, we’ve put together links to a number of helpful resources.

I'd like to share with Blog readers my article, just published, on "Victorian Reform of Civil Litigation in the Superior Courts of Common Law." The article appears in C.H. van Rhee ed., Within a Reasonable Time: The History of Due and Undue Delay in Civil Litigation (Duncker & Humblot, Comparative Studies in Continental and Anglo-American Legal History, 2010).

The abstract is:

The "delay, vexation, and expense" of English civil procedure attracted considerable criticism at the beginning of the nineteenth century, most notably from Jeremy Bentham and his ardent supporter in Parliament, Henry Brougham. Brougham's marathon speech in 1828 attacked the "double tax of cost and delay" and urged a series of sweeping reforms. Reform would come piecemeal throughout the century, culminating in transformative statutes enacted after Brougham and Bentham had died. Holdsworth accurately labeled the Victorian period the "age of reform" in procedure as in so many other areas of the law. This article examines the Victorian era's responses to undue delay in English civil litigation in the superior courts of common law. The immediate verdict on the reforms was overwhelmingly positive, but with the benefit of hindsight the appraisal is more modest. Indeed, it remains to be seen whether the High Court judges of the twenty-first century will be more successful than their Victorian counterparts in combating undue delay.

Alison LaCroix's new book, "The Ideological Origins of American Federalism," offers an insightful and compelling prehistory of federalism in the American Constitution. LaCroix demonstrates and traces the emergence of an ideology of federalism, an ideology centered around the concept of legitimate multiplicity in governmental authority, beginning with the colonial reaction to the Stamp Act in 1765.

However, as LaCroix's narrative progresses, her institutional focus inexplicably narrows. Beginning with the Constitutional Convention and continuing through the 1789 and 1801 Judiciary Acts, LaCroix argues that federalism took a turn toward judicial supremacy. In short, she argues that federalism discourse in the new republic was structured around courts and jurisdiction, rather than legislatures and sovereignty.

This Review highlights a number of factors that LaCroix's analysis overlooks - including structural constitutional features like the composition of the Senate and the federal military power, as well as historical controversies like the debate over the Bank of the United States and the Kentucky and Virginia Resolutions - to suggest that the focus on judicial power is more an artifact of LaCroix's choice of evidence than an accurate reflection of the state of federalism discourse. Instead, this Review argues that the Constitution uses separation-of-powers multiplicity in the service of federalism multiplicity.

This Review then expands on LaCroix's idea of multiplicity, bringing it to the separation-of-powers context. The final section of the Review begins to develop a theory of multiplicity in the separation-of-powers, focusing on the ways in which constitutional politics affects not only the resolution of substantive issues, but also the institutional site at which those issues are resolved.

is an on-going investigation by student researchers and history professors at Eastern Illinois University and elsewhere of legal documents from an Illinois county (primarily during the 19th century), which are being entered into an online database. The database is free and accessible to the public (see below), and has been designed so that high school students, undergraduates, graduates, genealogists, and professional historians can manipulate the search engine with a minimum of fuss. Coles County was created in 1830 and civil and criminal cases date from that year onwards. CCLHP provides excellent data for comparative legal history. But it also reveals the impact of settlement, railroad construction and use, the Civil War, integration with Chicago and other markets, and a comparative base for study of the law practice of Abraham Lincoln, as well as many other historical questions.

Sunday, August 15, 2010

For those following Perry v. Schwarzenneger, the case challenging California's anti-same sex marriage proposition, the interesting question of whether anyone has standing to appeal the district court ruling striking down Prop. 8 is discussed here by David Cruz, USC Law School, and also at SCOTUS Blog.

What if, in addition to rousing a nation to save the world from the Nazis, he fought for a raw white supremacy and a concentration camp network of his own? This question burns through Richard Toye's superb, unsettling new history, "Churchill's Empire" - and is even seeping into the Oval Office....

The young Churchill charged through imperial atrocities, defending each in turn....Of course, it's easy to dismiss any criticism of these actions as anachronistic. Didn't everybody in Britain think that way then? One of the most striking findings of Toye's research is that they really didn't: even at the time, Churchill was seen as standing at the most brutal and brutish end of the British imperialist spectrum.

"The humanist mythology of print." With this phrase the British scholar Andrew Pettegree indicates the cultural story his book amends, and to some extent transforms. In an understated, judicious manner, he offers a radically new understanding of printing in the years of its birth and youth. Print, in Pettegree's account, was never as dignified or lofty a medium as that "humanist mythology" of disseminated classics would suggest.

Readings for this workshop will be posted on a password-protected site. All participants are expected to read the papers before the workshop and to come prepared to discuss each piece after the author makes brief introductory remarks.

Attendance is limited to a small group of faculty in order to facilitate discussion of each paper. If you are interested in attending and actively participating in this workshop, please contact Mitra Sharafi at sharafi@wisc.edu.

The site is dedicated to the history of the study and practice of history in Britain. Of particular fascination is a set of interviews with leading historians, including David Cannadine, Eric Hobsbawm, Michael Howard, James Holt, Janet Nelson, and Michael Prestwich, among others.

For legal historians specializing in Europe, a new professorship in European and Constitutional History at the University of Vienna may be of interest. The application deadline is October 1, 2010. Here is the notice:

The Faculty of Law of the University of Vienna announces the position of a

Full Professor of European Legal and Constitutional History

(full time position under private law). The University of Vienna intends to increase the number of women on its faculty, particularly in high-level positions, and therefore specifically invites applications by women. Among equally qualified applicants women will receive preferential consideration.

• Main qualifications:1.) History of Jurisprudence or history of Legal practice2.) Central European Legal History, with the main emphasis on Austria; if the candidate has not focused on this area so far, he or she will be expected to familiarise themselves with the field.3.) As the successful candidate will be expected to represent all areas of the subject of legal history in teaching, the candidate is required to substantiate with his or her present oeuvre that he or she is capable of crossing the boundaries of legal history towards other foundational subjects in jurisprudence that have historical connotations and is capable of close teamwork and interdisciplinary collaboration within these fields.• The Faculty of Law of the University of Vienna provides the academic training of about 50 percent of Austria’s lawyers. Therefore, the position requires great enthusiasm for teaching and a special interest in legal didactics, particularly in regard to teaching first-year law students.• The University of Vienna accommodates the largest law faculty of the German speaking countries, which provides an unusually wide and diversified range of opportunities in legal scholarship and offers its scholars a prominent stage for academic debate.

Successful candidates will have the following qualifications:

- PhD and post-doctoral experience at a university or other research institution.(Austrian or equivalent international academic degree in the relevant field)

- Outstanding research and publication record, with an excellent reputation as an active member in the international academic community ¬(Habilitation (venia docendi) or equivalent international qualification in the relevant field is desirable)

- Experience in designing, procuring and directing major research projects, and willingness and ability to assume the responsibility of team leadership

- Experience in university teaching, and willingness and ability to teach at all curricular levels, to supervise theses, and to further the work of junior academic colleagues

The University of Vienna expects the successful candidate to acquire, within three years, proficiency in German sufficient for teaching in Bachelor programmes and participation in committees.

The University of Vienna offers

- Attractive terms and conditions of employment with a negotiable and performance-related salary, associated with a retirement fund- A “start-up package” for the initiation of research projects- An attractive and dynamic research location in a city with a high quality of life and in a country with excellent research funding provision- Support for relocation to Vienna, where appropriate

Candidates should send an application containing at least the following documents:

- Academic curriculum vitae- Brief description of current research interests and research plans for the immediate future- List of publications together witha) specification of five key publications judged by the applicant to be particularly relevant to the advertised professorship together with an explanation of their relevanceb) PDF versions of these five publications provided either as email attachments or through URLs of downloadable copies (PDF versions of monographs need only be provided if easily available.)- List of talks given, including detailed information about invited plenaries at international conferences- List of projects supported by third-party funds- Short survey of previous academic teaching and list of supervised PhD theses

Applications in English or German should be submitted per e-mail (preferably as pdf attachments) to maria.katsaros@univie.ac.at or should be sent to the Dean of the Faculty of Law of the University of Vienna, Schottenbastei 10-16, 1010 Wien, no later than October 1st, 2010 with reference Nr. 0730/10.

This position is in a Political Science department, but they are seeking candidates who don't necessarily have a Political Science PhD -- they include JDs and scholars with a PhD in the humanities in the description. So if you do constitutional history and want to be in New York, this might be for you:

Brooklyn Collegeinvites applications for the Herb Kurz Endowed Chair in Constitutional Law and Civil Liberties. Research and writing in any of the following areas is of particular interest: Congress’s commerce-clause powers over the economy and other sectors of national life; executive power during wartime; freedom of speech; the rights of criminal suspects and prisoners; equal protection and due process for people of color, women, and LGBT communities; the rights and standing of immigrants and migrant communities; the role of international law, particularly human rights law, in constitutional interpretation.

This position is at the Associate or Full Professor level. Candidates should have a PhD in political science or any related discipline in the humanities and social sciences and/or a Juris Doctor, and a distinguished record of teaching, scholarship, and leadership in the field of constitutional law.

All appointments are subject to financial availability. The College offers a competitive salary and an excellent fringe benefits package.

Please be sure to upload a letter of application, curriculum vitae, representative scholarly publications, and evidence of teaching excellence. In addition, the applicant should arrange for three confidential letters of reference to be sent directly to:

Back in 2007, Paul Horwitz over on PrawfsBlawg posted the link to Justice Oliver Wendell Holmes's moving statement at the conclusion of the national radio broadcast commemorating his ninetieth birthday, in March 1931. For the benefit of LHB readers who might have missed it, here it is. A colleague tells me that Paul Freund used to play it for his constitutional law seminar at the Harvard Law School.

Peggy will be remembered, not simply for what she wrote, but also for what she was, what she gave daily to students, friends, and compatriots, and what she leaves for us to finish. She might say-her modesty was never an affectation-that the last are by far the most important. She left as many questions as she managed to answer; it's now up to younger scholars and activists to follow her lead, to pick up the reins. Western allusions are deliberate: Peggy was an historian of the west, where it's sometimes said that the sky's the limit.

And then she turns to a great story about when Peggy commented on her paper at the American Society for Legal History meeting. It turns into a story about doing women's history, and about refusing to compromise. You can find it here.

This essay deals with what "the law" did to Dr. Branion, an American citizen, after the jury convicted him of murder in 1968. Under the American legal system, a defendant is entitled to have his case reviewed by a higher court, and, under certain circumstances, if the appellate review is unsuccessful, to present a petition for habeas corpus to a state or federal court. I will focus primarily on the stage of his litigation with which I am most familiar: his pursuit of a habeas remedy in federal court between 1986 and 1989. I will try to explain how one federal judge after another, using reasons wholly inconsistent inter se, managed to affirm the conviction of a provably innocent man.

The on-line edition of the Houston Chronicle for August 10 carried an op-ed piece by Bill Kroger, the co-chair of the newly appointed Texas Supreme Court Historical Records Task Force. As Kroger explains:

Recently, the Texas Supreme Court created a volunteer Historical Court Records Task Force for the purpose of studying the conditions of the Texas state court archives and recommending how the state can better preserve and protect these records.

The task force's first step was to create a comprehensive survey of the historical court records in every county across the state. The task force collaborated with the Office of Court Administration to develop the survey and distribute it to more than 400 district and county clerks. More than 278 clerks responded. For the first time, the state of Texas has current statewide information about historical court records, their maintenance, and their condition.

Wednesday, August 11, 2010

The call for papers for the Twentieth British Legal History Conference, "Law and Legal Process," is now out, here. The conference will be held in Cambridge from Wednesday July 13. 2011 to Saturday, July 16, 2011. Here is its theme:

The conference addresses the intersection between law and legal process, the ways in which the processes of courts and other tribunals, the practices of judges and lawyers, and the needs of litigants, influence each other and shape the development of the law; and the influences in turn of legal doctrine upon the practices of those coming into contact with the law.

The conference organisers welcome papers concerning all jurisdictions, branches of the law and historical periods. Ideally, papers should reflect the conference theme. Papers reflecting the results of innovative legal history research are most welcome. Submissions from doctoral students are encouraged.

Proposals for papers (up to 500 words) are invited, to reach the organisers – preferably by email attachment (in Word or pdf format) sent to the address below – by 31 August 2010. If potential contributors are unsure whether their proposals suitably reflect the theme, the organisers are very happy to be contacted informally by email (again to the address below).

The use and study of the past is constantly being refashioned and reinterpreted to construct meaning in the present, imparting understandings of a common but chaotic humanity. Because everyone and no one ‘owns’ history, the ownership of historical events and the right to speak of them remains deeply contested. What are the outcomes and practical challenges surrounding the construction of historical consciousness through and about law? Whose past is told and by whom? How does law’s past influence history’s present? And is there any such thing as the orderly evolution of legal ideas? This conference invites papers on the subject of ownership in history and law, and may include contributions on any of several broad themes: the contestation of memory; the ethics of representation and remembrance; the commoditization and consumption of traumatic pasts; transcultural and transgenerational trauma; new technologies of historical documentation; testimony and bearing witness; Indigenous knowledge; identity politics; citizenship; the ethics of reproducing historical narratives; colonialism and hegemony; ‘dark’ tourism and artefacts of law; and new legal imaginings and the contest with the legal past.

This is an interdisciplinary conference and papers will be presented by scholars across a broad range of disciplines, as well as chronological and geographical contexts. The call for papers has closed.

The conference program is here. Direct inquiries to lawhistoryconference@latrobe.edu.au

Tuesday, August 10, 2010

The University of Pennsylvania Press has a book series: Democracy, Citizenship, and Constitutionalism. Rogers M. Smith, Browne Distinguished Professor of Political Science, University of Pennsylvania, is the founding editor, and I've recently signed on as co-editor of the series. Works of constitutional history are most welcome. The series is interdisciplinary, and also welcomes projects on constitutionalism in other nations and comparative work. Here's the series description:

In 1787, revolutionaries in Philadelphia invented a new political identity: citizenship in a large-scale constitutional democracy. That combination, once new and rare, is today being imitated around the globe. Yet despite its great prestige, constitutional democratic citizenship is fraught with tensions that are becoming ever more acute. The DCC series seeks to publish the best empirical and normative explorations of citizenship, democracy, and constitutionalism from scholars in many disciplines, including political science, law, history, sociology, philosophy, anthropology, communications, literature, and education. View the volumes available in the DCC series.